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ANALYSIS OF APRIL 15, 2008 CAV OPINIONS

[Posted April 15, 2008] As the weather heats up with the onset of spring, the Court of Appeals has followed suit, issuing six published opinions today in addition to the seven that it handed down last week. On average, the court gives us roughly two published opinions a week, so the recent torrent of cases means that someone up there is clearing out the docket. Either that, or the court has become more expansive in deciding which cases will be published.

Criminal law

Four of today’s cases involve criminal appeals, and like last week, the defendants don’t fare too well; one appellant manages a partial reversal, and the other three go down completely. Two opinions produce wholly unsurprising results, at least in my eyes, and are probably published because the subject matter is relatively unplowed ground. In Rivas v. Commonwealth, the court finds that a court that finds a juvenile to be in violation of his probation can impose any disposition that it could have imposed at the time of the original (suspended) adjudication. The appellant had contended that a quirk in the juvenile probation statutes had constrained the sentencing court to go no further than the original court’s actual pronouncement of sentence, but the Court of Appeals rejects that approach. And in Mwangi v. Commonwealth, the court follows a line of cases that hold that a certified copy of a prior conviction (used in a prosecution for DUI-3rd) doesn’t have to be signed by the trial judge, as long as it has been duly certified and attested by the Clerk. It didn’t help Mwangi’s cause that the prosecution also introduced his DMV transcript into evidence; that document corroborated the findings of guilt from the earlier cases.

There’s a very interesting legal issue in Lane v. Commonwealth, involving three convictions of possession of something called oxycodone with intent to distribute. When a sheriff’s investigator searched Lane pursuant to a warrant, he found a bounty of evidence in the suspect’s pockets. In his right pocket, he found green pills of pure oxycodone; in his left pocket, he found white pills containing a mixture of oxycodone and the perfectly legal substance acetaminophen. In a garage a few feet away, the investigator located a small bottle containing liquid oxycodone.

The intriguing legal issue is just how many offenses this comprises. The prosecution counted three, reasoning that the pills in the left pocket were different chemically from the pills in the right, and the stuff in the garage was in a different location. The trial court agreed, and convicted Lane three times. On appeal, the Court of Appeal today reverses that decision, finding that the prosecution has engaged in the criminal law equivalent of claim splitting, which is prohibited by the Double Jeopardy Clause. While it is possible to convict a defendant of two counts of possession for separate stashes, this case doesn’t present one of those circumstances. Instead, the court focuses on the defendant’s intent with regard to each stash. If, for example, one stash was for distribution and another was for personal use, then that could constitute two separate offenses. But there was no evidence in the record of this case to demonstrate such intent, so the case is remanded for resentencing on one count only.

The court also tackles a much less intriguing issue relating to the reliability of a confidential informant, upon whose report the search warrant was issued. It concludes that a reasonable police officer would not have known that there was anything untoward about the warrant (assuming without deciding that the warrant was defective at all), so the good faith exception, about which I have written recently, applies, and the evidence is admissible.

The final criminal opinion of the day is Murphy v. Commonwealth, and implicates plea agreements and grants of immunity. Many civil practitioners may not know that in addition to the two kinds of immunity that a prosecutor can agree to grant (transactional and use immunity), the law can impose transactional immunity in a case where a witness is summoned to testify in the prosecution of someone else. Murphy was arrested along with another defendant and charged with two crimes involving marijuana. Deciding that the other guy was the big fish, the prosecutor offered Murphy a plea deal in which he agreed to nolle prosequi one of the charges in exchange for testimony against the Bad Guy. Murphy agreed, but the plea deal was not immediately reduced to writing.

Murphy testified at the preliminary hearing, but then, seizing upon the statute, argued that he had earned complete transactional immunity, and asked that both charges against him be dismissed. No way, the prosecutor answered; I only agreed to drop one of the charges, and you’re going to jail on the other one. The trial court declined to dismiss the charges. In a curious procedural development, Murphy then signed the plea agreement, exactly as he had negotiated it, and then pleaded guilty to the surviving charge, reserving unto himself the right to appeal the immunity issue.

Today, he gets the appellate take on the novel question. The Court of Appeals finds that he waived his right to rely upon the statute by agreeing to the plea deal. He then rescinded his waiver by filing his motion to dismiss. But he didn’t retroactively do so; upon his rescission, he only protected his right to claim immunity in the event of future testimony. (While this may seem convoluted, it actually makes eminent sense, as the majority opinion points out today. Plea bargains are a contractual process, and a party can’t unilaterally back out of the deal and claim its benefits at the same time.)

The court thus affirms the conviction on the second charge. Judge Haley files a concurring opinion, agreeing that the conviction should stand, but would hold that the statutory immunity only applies where the testimony is compelled, not voluntary as in Murphy’s case.

As today’s opinion notes, this can often be a guessing game for the defendant/witness. If he figures that the prosecution absolutely has to have him in order to get the bigger fish, then he might just sit and wait, hoping that the Commonwealth will call him to testify and thereby give him the precious transactional immunity. On the other hand, a defendant in Murphy’s shoes might play that game of prosecutorial chicken and lose, if the prosecutor decides he can get along without the testimony; in that case, the Murphys of the world will find themselves defending two charges instead of one.

Administrative law

The court doesn’t offer many published Admin law opinions, but we get two today. One is a curious set of circumstances that led to the firing of a 29-year employee for alleged sexual harassment. The case is Virginia Tech v. Quesenberry.

Quesenberry oversaw the mail system at Tech, and also (as a side interest, not related to his day job) was a coach and board member at a nearby boxing club. To raise funds for the latter program, the board decided to produce and sell a calendar featuring demure cheesecake photos of young women in boxing poses.

One of Quesenberry’s underlings was a man named Long. Long told Quesenberry that he knew of a coed who might be willing to pose for the calendar. Long and Quesenberry went to the coed’s office, where the introduction was made; Quesenberry described the project to the coed, and assured her that the photo shoot would be in good taste. During this conversation, the coed reached for a piece of candy; Quesenberry jokingly said, “If you continue eating that, you will look like a little refrigerator with your head on top.”

Did you miss it? That was the sexual harassment. Quesenberry didn’t touch her; didn’t ask her out; didn’t make sexually suggestive comments; and apparently didn’t so much as leer at her during the roughly 10-minute conversation. (Importantly, while the coed did work for the university, she was not within Quesenberry’s chain of command.) The absence of these circumstances didn’t matter to the coed; she said she felt “objectified” and reported the incident as sexual harassment. The university investigated the charge, decided it was founded, and fired Quesenberry. A hearing officer considered the case at Quesenberry’s request, and although he concluded that the coed overreacted, he still affirmed the termination.

Quesenberry appealed to circuit court, where he got a more favorable welcome; the court decided that the behavior was not sexual harassment under “any objective standard of reasonableness,” and ordered his reinstatement. Today, the Court of Appeals affirms that ruling, so Quesenberry gets reinstated with full back pay and benefits.

The court’s opinion is useful as a road map of how sexual harassment claims are analyzed, and in conjunction with today’s other admin law opinion, discussed below, it gives you an excellent picture of the way such cases are reviewed on appeal. Even though Quesenberry won in the trial court, the university still gets the benefit of a favorable evidentiary view, since the hearing officer, being the guy who saw and listened to the live testimony, had ruled against Quesenberry. Nevertheless, the appellate court concludes that no reasonable person could have considered Quesenberry’s conduct to be sexual in nature. The only nexus the entire encounter had with any sort of sexuality was to describe the planned calendar photos (which might have been suggestive, but would not be indecent). But the opinion notes that that doesn’t constitute a “veiled reference to sex.”

Virginia Tech had one other argument on appeal, but it falls victim to a particularly troubling procedural violation that we saw earlier this month. The school sought to admit at the hearing certain evidence of prior misconduct by Quesenberry. But as in the April 1 decision in Rambo v. Commonwealth (see that day’s analysis, below), the appellant merely cited what it thought was black letter law, without citing any cases for the proposition. The court won’t consider an argument that isn’t supported by legal authority, either statutory or common law, so this issue doesn’t see the light of day in today’s opinion.

The other admin law case, NRV Real Estate v. Department of Health, deals with nursing home beds. Not necessarily the structures themselves, but the patient capacity they represent. You may not know that the Commonwealth strictly regulates the number of such beds, and even the most qualified, conscientious nursing home can’t expand unless it gets a Certificate of Public Necessity from the Department of Health. And there’s more – you can’t even apply to expand unless the Commissioner of Health has issued something called a Request for Applications. In other words, the supply of nursing home beds is artificially controlled by the Department of Health, presumably in order to ensure quality, but effectively limits competition.

There’s another provision in the Code that enables a provider to bypass the COPN process if it discontinues a service but then seeks to reinstate it within 12 months. There’s an enumeration of the several types of providers that can take advantage of this 12-month rule, but nursing homes aren’t on the list. Despite that, the Department of Health has consistently in the past treated nursing homes as being entitled to the benefit of the 12-month rule.

But not this time. A hospital in Pearisburg had 21 beds certified for nursing home use, and decided in 2004 to stop providing that service. The hospital simultaneously entered into an agreement to transfer the beds to a Radford nursing home, which was within the same Health Department planning district. Just over ten months later, the nursing home filed an application for a COPN, claiming the benefit of the 12-month rule. But inexplicably, the Health Department refused, claiming that this application would constitute an increase in the number of beds, noting that no Request for Applications had been issued.

The nursing home scratched its figurative head, recognizing that this was an abrupt change of course. It appealed to the circuit court, but got no love there; the court held that the 12-month rule didn’t apply to nursing homes (using the maxim expressio unius estexclusio alterius). It also found that since the hospital, as of the date of the new application, was approved for zero beds, then the new application would violate the statute since it would increase the number of beds in the district by 21.

I’ll cut to the chase here; this ruling gets reversed. The Court of Appeals notes that administrative agencies can change their minds – believe it or not, the rule of staredecisis doesn’t apply to such bodies – but they need to give a reason when doing so. This makes eminent sense because, as the court observes, people make business decisions based on past rulings, so the agency should respect previous interpretations unless there’s a good reason not to do so. The court determines that while the statute doesn’t mandate that the 12-month rule applies to nursing homes, it “does not prohibit its application as a matter of administrative discretion.”

Okay; now we have a use of the D-word, and that brings on an abuse-of-discretion analysis. In this context, the nursing home was required to show that the Department acted arbitrarily and capriciously in ruling the way it did. Speaking as a former municipal lawyer, I know well how daunting is the task of proving arbitrariness, but the nursing home pulls it off. The court concludes today that by coming up with a completely different interpretation without offering a good reason for the change, the Department’s ruling “can only be considered arbitrary and capricious.” The court thus remands, and now the Department will have to accept the application and provide some findings of fact and conclusions of law to support whatever decision it makes. That means this isn’t an ultimate win for the nursing home, but at least it gets the game going again.

And if you’re among those free market capitalists who are upset by the Code’s artifical limitation on the provision of nursing home beds, or any other commodity, you’ll have to go to another forum to debate that one; we’re content to take up only appellate topics here.